LONGSHORE v. COMMONWEALTH

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LONGSHORE v. COMMONWEALTH

June 9, 2000

Record No. 992269

Court of Appeals No. 1007-98-1

Clifton S. Longshore, Jr., Appellant,

v.

Commonwealth of Virginia, Appellee

Upon an appeal from a judgment rendered by the Court of
Appeals of Virginia on the 13th day of July, 1999.

Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is no error in the
judgment of the Court of Appeals.

The circuit court permitted the Commonwealth to introduce the
testimony of an absent witness into evidence by reading that
witness’s prior testimony as contained in a transcript of the
preliminary hearing on this felony charge. At that preliminary
hearing, the defendant called the witness and questioned him
about the robbery that occurred in the "bullpen" of a
jail and the fact that the witness did not report what he
observed to any jail personnel at that time. Although the
Commonwealth issued a summons for the absent witness to appear at
the trial in the circuit court, the witness could not be located
and was never served with the summons.

The defendant objected to the introduction of the absent
witness’s testimony and now claims that the requirements for
admitting prior testimony of an unavailable witness were not
satisfied and that the use of the absent witness’s testimony at
the defendants trial in circuit court violated the
defendants constitutional right to confront the witnesses
against him.

We have previously held that the preliminary hearing testimony
of a witness who is absent at a subsequent criminal trial may be
admitted into evidence if the following conditions are satisfied:
(1) that the witness is presently unavailable; (2) that the prior
testimony of the witness was given under oath (or in a form of
affirmation that is legally sufficient); (3) that the prior
testimony was accurately recorded or that the person who seeks to
relate the testimony of the unavailable witness can state the
subject matter of the unavailable witnesss testimony with
clarity and in detail; and (4) that the party against whom the
prior testimony is offered was present, and represented by
counsel, at the preliminary hearing and was afforded the
opportunity of cross-examination when the witness testified at
the preliminary hearing. Shifflett v. Commonwealth, 218
Va. 25, 28, 235 S.E.2d 316, 318 (1977). See alsoFisher
v. Commonwealth, 217 Va. 808, 812-13, 232 S.E.2d 798, 801-02
(1977).

In the present case, all these requirements were fulfilled.
Specifically with regard to the defendant’s opportunity to
cross-examine the witness at the preliminary hearing, the record
shows that, even though the defendant, rather than the
Commonwealth, called the witness, the court did not limit the
defendant’s questioning of the witness nor did the Commonwealth
object to any question. Furthermore, since the defendant called
the witness, his questions were not limited by the scope of the
Commonwealth’s direct examination. In other words, the defendant
tested the witness’s testimony to the full extent that he chose
to do and he had more than a mere opportunity to conduct the
equivalent of cross-examination. SeeOhio v. Roberts,
448 U.S. 56, 71 (1980). Thus, we find no error, constitutional or
otherwise, in permitting the use of the absent witness’s prior
testimony at the trial of this felony charge.

It is ordered that the Circuit Court of the City of Chesapeake
allow counsel for the appellant a fee of $725 for services
rendered the appellant on this appeal, in addition to counsel’s
costs and necessary direct out-of-pocket expenses.

The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding,
counsel’s costs and necessary direct out-of-pocket expenses, and
the costs in this Court and in the courts below.

SENIOR JUSTICE WHITING, with whom JUSTICE HASSELL joins,
dissenting.

I am unable to agree with the majority for the following
reasons. I do not think that the defendant "was afforded the
opportunity of cross-examination when the witness testified at
the preliminary hearing," as held by the majority. In my
opinion, simply because "the court did not limit the
defendant’s questioning of the witness nor did the Commonwealth
object to any question," does not mean that the defendant
either had or exercised the right of cross-examination at the
preliminary hearing.

Nor do I agree that "the defendant tested the witness’s
testimony to the full extent that he chose to do and he had more
than a mere opportunity to conduct the equivalent of
cross-examination," as the majority concludes. The record
indicates that the defendant asked a limited number of innocuous
leading questions of the witness during his direct examination
regarding the witness’s recollection of what he had observed
during the encounter in the "bullpen" and his failure
to promptly report the alleged robbery. Moreover, the record does
not indicate that the defendant sought to (1) establish ulterior
personal reasons of the witness for unfairly casting blame on the
defendant or challenging the witness’s veracity as in Ohio v.
Roberts, 448 U.S. 56, 71 (1980), (2) impeach the witness in
the preliminary hearing by prior inconsistent statements, a tool
used in cross-examination, as noted in California v. Green,
399 U.S. 149, 168 (1970), or (3) establish a bias in favor of the
Commonwealth in the form of a plea agreement or promise of
leniency regarding the pending charges against the absent
witness, which probably would be used as an important part of a
cross-examination which I think should have been afforded the
defendant in the circuit court.

Further, I would reject the Commonwealth’s claim that the
defendant had "the opportunity" to cross-examine the
absent witness at the preliminary hearing as in the case of Fisher
v. Commonwealth, 217 Va. 808, 812, 232 S.E.2d 798, 801
(1977). In Fisher (as well as in Shifflett v.
Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977), cited by the
majority), the absent witness had testified as a Commonwealth
witness at the preliminary hearing and was thus subject to
cross-examination by the defendant.

Here, although the absent witness had been called by the
defendant at the preliminary hearing, the Commonwealth suggests
that the defendant’s right of cross-examination was
"protected" even though "he did not avail himself
of it." The Commonwealth reasons that the defendant’s right
of cross-examination arose because the absent witness’s testimony
"was clearly adverse to the defendant when he stated that he
saw the defendant rob [the victim]."

None of the three cases that the Commonwealth cites supports
its contention. In each case, the witness was held to be adverse
for reasons other than the fact that he or she gave
testimony unfavorable to the defendant. Trout v. Commonwealth,
167 Va. 511, 514-16, l88 S.E. 219, 220-21 (1936) (Commonwealth
surprised by its witness’s testimony because of her prior
inconsistent statements); Nelson v. Commonwealth, 153 Va.
909, 919, 150 S.E. 407, 410 (1929) (Commonwealth’s witness proved
adverse or hostile); Pendleton v. Commonwealth, 131 Va.
676, 704, 109 S.E. 201, 211 (1921) (court conducted direct
examination of witness because she refused to discuss case with
Commonwealth’s Attorney prior to trial).

In my opinion the rule in Virginia is that a witness does not
become adverse simply because his or her testimony is adverse or
injurious to the calling party’s case, as perhaps in the
preliminary hearing in this case. Rather, an adverse witness is
usually an opposing party or a nonparty witness who has a
financial or other personal interest in the outcome of the case,
or a witness who gives surprising and unexpected adverse
testimony. Butler v. Parrocha, 186 Va. 426, 432-33, 43
S.E.2d 1, 4-5 (1947); Maxey v. Commonwealth, 26 Va. App.
514, 520, 495 S.E.2d 536, 539 (1998).

For these reasons, I would reverse the judgment of the Court
of Appeals and remand the case to that Court with directions to
remand the case to the circuit court for a new trial to be
conducted in accordance with the principles expressed in this
dissent.

Justice Lemons took no part in the consideration or decision
of this case.

This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of the City of Chesapeake and
shall be published in the Virginia Reports.